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proper and necessary to a final adjudication as to said real property,
that the grantee should be joined as a party defendant to the action. LD.—CAUSES OF ACTION NOT MIŞJOINED-GROUNDS FOR EQUITABLE RE
LIEF.—There is no misjoinder of causes of action in the suit in equity to settle the partnership, in which the principal relief asked is to establish the partnership, and for an accounting of the partnership assets and business. The prayer for an injunction and for the appointment of a receiver is only in aid of the relief sought. As the subject matter of the action relates to but one transaction, it is the settled practice in equity, in order to avoid a multiplicity of suits, to allow suit, in the same action, for every species of relief
necessary to secure the rights of the plaintiff in such subject matter. ID.-AMENDED AND SUPPLEMENTAL COMPLAINT NOT AMBIGUOUS OR UN
CERTAIN.—The amended and supplemental complaint is not subject to a demurrer for ambiguity or uncertainty, where it appears that the amended complaint is sufficiently certain, and that the supplemental complaint shows with certainty that the relief sought therein
relates to matters arising after the commencement of the action. ID.-EVIDENCE-PAYMENT BY PLAINTIFF UPON OPTION-CROSS-EXAMINA
INCONSISTENT STATEMENT AS TO LOAN — ADMISSION—REPEATED QUESTION—RULING WITHOUT PREJUDICE.—Where the plaintiff testified in chief that, upon securing the option to purchase the real property in question, he paid the owner the sum of one hundred dollars to be credited on the purchase price, it was proper to show on cross-examination that plaintiff had made an inconsistent statement upon a former hearing that he loaned the money to the defendant who acquired the property, which, in answer to a question, he admitted that he might have made, and the question was repcated, the court's ruling that there should be no further cross-examination was without prejudice. Where a question is asked and answered in a manner which indicates that no different answer could probably be given to the same question, the trial court is not bound to have its
time consumed by such question uselessly repeated. ID.-INCONSISTENT STATEMENTS—IMPEACHMENT OF WITNESS-FOUNDA
TION REQUIRED-ABSENCE OF IMPEACHMENT-PROOF REQUIRED WITHOUT FOUNDATION.—Where it is sought to impeach a witness by showing that he had previously made statements at variance with his present testimony, such statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, or if the statements be in writing, they must be shown to the witness before any question is put to him concerning them. But if no special impeachment is sought, a witness may be required to answer on cross-examination as to inconsistent statements, without laying any foundation therefor.
Iv.-EVIDENCE AMOUNT OF SALARY ALLOWED BY DEFENDANT TO PLAIN
TIFF-DISALLOWANCE NOT PREJUDICIAL-REPETITION OF TESTIMONY -AMOUNT READILY ASCERTAINABLE.—Where the defendant was asked as to the amount of a salary of one hundred dollars per month which he testified had been allowed the plaintiff, there was no prejudicial error in disallowing the question, where it related to evidence which he had previously given to the effect that plaintiff received one hundred dollars per month for every month that he was actually engaged in the business, and the amount paid was easily
and readily ascertainable by arithmetical calculation. ID.-PROPER DISALLOWANCE OF EVDENCE UNDER OMNIBUS QUESTION
DUTY OF COUNSEL-ABSENCE OF PREJUDICIAL ERROR.—Where the defendant testified that some of the matters that plaintiff had testified to concerning himself and the defendant occurred, and some did not occur, the asking of the omnibus question by his counsel, “What part did, and what part didn't?” the trial court was not bound to allow in that form. His counsel should have taken up the alleged incorrect statements separately, if relating to different acts or matters, and have called the attention of the witness thereto, and have asked him whether they were or were not correct. Moreover, there could be no prejudicial error in disallowing the question asked, where the record shows that the defendant went fully into all matters pertaining to the differences between the parties, and stated
repeatedly that "that is all that occurred.” ID.— ADOPTION OF REPORT OF REFEREE - · ACCOUNTING OF PARTNERSHIP
BUSINESS AND ASSETS-QUESTION AS TO NOTICE OF HEARING-SurFICIENT PROOF.—The court committed no prejudicial error in adopting the report of a referee appointed to take an accounting of the partnership business and assets, on the alleged ground that defend. ant and his counsel had no notice of the time and place of the hearing before the referee, where the affidavit of his counsel to that effect is rebutted by the referee's certificate that both parties received such notice, and also by the affidavit of plaintiff's counsel that he gave personal notice to defendant's counsel of the hearing, and requested his presence thereat, and stating that defendant was personally represented at the hearing by his business agent, which
fact was uncontradicted. ID.-IMPLIED NOTICE OF HEARING AND WANT OF DILIGENCE-KNOWLEDGE
OF REPORT OF REFEREE AND FAILURE TO OBJECT-FINDINGS-NOTICE -PRESUMPTION AGAINST GROUND OF OBJECTION.- Where all of the parties were present in court when the referee was appointed and knew of the terms of his appointment and the directions of the court as to his duties, they were put on their guard to exercise reasonable diligence to have ascertained the time and place at which the testimony was taken by the referee, and when the defendant and his counsel failed in such reasonable diligence, they were chargeable
with implied negligence. And where defendant and his counsel knew of the filing of the report of the referee, and failed to object thereto until it was incorporated in the findings of the court, it must be
assumed that defendant had no ground of objection to the report. ID.-TIME FOR EXISTENCE OF PARTNERSHIP-IMMATERIAL FINDING.
Where after the striking out of the averment as to the time of the existence of the partnership the principal point in issue was whether there was a partnership agreement at all, and if there was, and the partners had entered upon the execution of the terms of the agreement, it is of no material importance whether such partnership was to continue for a limited time or indefinitely. It is held that a finding that it was to continue until the real property had been paid for is of no special importance, and is not ground for reversal be
cause not sustained by the pleadings. ID.-SUPPORT OF FINDINGS FOR PLAINTIFF CONFLICTING EVIDENCE,
AFFIRMANCE OF DECISION.—Where the evidence is substantially con. flicting, and there is sufficient evidence for the plaintiff to support the findings in his favor, the decision of the trial court in plaintiff's favor must be affirmed upon appeal.
APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. Geo. E. Church, Judge.
The facts are stated in the opinion of the court.
Royal A. Carter, Carl F. Wood, and A. L. Frick, for Appellants.
C. K. Bonestell, for Respondent.
HART, J.—This action was brought for an accounting of the partnership property and business of the plaintiff and the defendant, John J. Shoo.
The complaint alleges that, in the month of July, 1909, the plaintiff and the defendant, John J. Shoo, entered into a parol contract of copartnership, "whereby they agreed to associate themselves together for the purpose of conducting and maintaining a billiard and pool hall and saloon and cigar business in the city of Coalinga, county of Fresno, state of California, and dividing the profits thereof equally between them”; that, by the terms of said contract, the plaintiff was to have the sole and entire management of said business; that,
at the time that said contract was entered into, it was further agreed by and between said parties that they would obtain an option to purchase, in the name of the defendant, John J. Shoo, four certain lots, with the improvements thereon, situated in said city of Coalinga; that the improvements on said lots consisted of buildings suitable to the purposes of the business which, as before indicated, they had agreed to engage in; that, in pursuance of said agreement, the plaintiff and defendant John J. Shoo, on the twenty-first day of July, 1909, obtained an option, in writing and in the name of said John J. Shoo, from the owners of said real property to purchase the same for the total sum of sixty-five thousand dollars, on the following terms; twenty thousand dollars to be paid on the first day of August, 1909, and fifteen thousand dollars on the first day of every succeeding August until the full purchase price was paid, together with interest at the rate of six per cent per annum on the deferred payments; that neither plaintiff nor John J. Shoo had ready money with which to make the first payment as aforesaid, and it was, therefore, agreed between them that said Shoo should borrow the sum requisite to make such payment; that the balance remaining unpaid on the purchase price should be paid as the installments thereof and interest became due out of the profits of the copartnership business and the rents to be derived from said property; that when the entire purchase price should have been so paid, the plaintiff should pay to said Shoo one-half of the said sum of twenty thousand dollars borrowed by him for the purpose of making the first payment on the purchase price and one-half of the interest which said Shoo might have paid on said sum of twenty thousand dollars; that said real property “should be and become part of the co-partnership assets."
The complaint then proceeds to allege that all the terms of the said agreement were carried out as above averred, and that, on the first day of August, 1909, the “plaintiff and said defendant, as partners, entered into and took possession of said premises and proceeded to conduct, and ever since have conducted therein as partners, a saloon and cigar business in conjunction with pool and billiard tables, and have ever since let out other portions of said premises and received rent therefor; that plaintiff has, from said Ist day of August,
continuously, up to the time he was expelled from participation in the affairs of said copartnership, as hereinafter set forth, had the sole and entire charge of said business; that, on the 8th day of February, 1910, said defendant, Shoo, against the will of plaintiff, forcibly excluded him from said premises and from any participation in any of the affairs of said copartnership, and has ever since kept him excluded from all thereof, and has ever since refused, and still refuses to permit plaintiff to participate in any thereof, or to account to him for anything belonging to said copartnership. That said defendant has ever since claimed, and now claims, to be the sole owner of everything belonging to said copartnership, , whether real or personal property.” The complaint (supplemental) further avers that Shoo, after the commencement of this action, caused to be executed and delivered to him by the vendors thereof a deed to all the real property purchased as aforesaid as copartnership property, and that on the same day such deed was so executed and delivered (February 28, 1910), said Shoo and the defendant, Josephine J. Shoo, his wife, executed and delivered a deed to said property to the defendant, Herrick; that said copartnership has made large profits and rents out of the business conducted and the property owned by it, amounting to the sum of twenty-five thousand dollars, which has been expended in the extinguishment of the debts of the copartnership; that the defendant has received and retained for his own use from the profits of said business the sum of four thousand dollars, while the plaintiff has likewise received and retained for his own use the sum of nine hundred dollars, only; that, at the time of the commencement of this action, there was on deposit in two banks in Coalinga, in the name of the defendant, Shoo, a sum exceeding three thousand dollars, which belongs to said partnership.
It is then alleged that, prior to the commencement of this action, the defendant, John J. Shoo, conveyed and assigned to the defendant, Josephine J. Shoo, all of his property "for the purpose of evading pecuniary responsibility for any of the acts hereinabove set forth.”
Ancillary to the principal relief sought for as above stated, the prayer is for a decree en joining the defendants, their agents, etc., from interfering with the plaintiff in partici